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Letters protected political speech: lawyer

A man who allegedly sent offensive letters to the families of soldiers who died in Afghanistan has told the High Court that wounding someone's feelings is not a criminal offence.

Man Haron Monis, also known as Sheik Haron, wants the court to quash multiple indictments alleging he used the postal service to offend the families of fallen diggers as well as relatives of a trade official killed by a bomb in Jakarta.

Lawyers for Mr Monis and his co-appellant, Amirah Droudis, told the court today the relevant section of the Commonwealth Criminal Code was invalid because it infringed the implied constitutional freedom of political communication.

The letters were critical of Australia's involvement in Afghanistan and denigrated the deceased soldiers.

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One said the Australian nation was to blame for the 2009 bombing in Indonesia because it was silent about the government's "oppressive behaviour" overseas.

David Bennett, QC, said the letters were "purely political" and therefore protected.

He told the court if the soldiers' families could have been conscripted to Mr Monis's side of the argument they would have provided a powerful voice.

"If one can recruit such people to one's campaign ... they would be a particularly powerful support for what's being advocated - namely an end to these military campaigns," Mr Bennett said on Wednesday.

Justice Dyson Heydon questioned why someone who had an issue with the war in Afghanistan wouldn't deal directly with politicians and not grieving families.

Chief Justice Robert French suggested the letters could be offensive because of their context and the fact they were addressed to military families and relatives of a victim of terrorism.

But Mr Bennett insisted wounding a person's feelings should not involve a criminal offence.

An unqualified prohibition against being "offensive" was not compatible with the implied freedom of political communication, he said.

Many people might be upset to receive a bill or letter of demand, but speech should only be banned if it was likely to provoke unlawful physical retaliation.

Only if a law aimed to prevent someone from "lashing out" would it have the requisite public purpose, Mr Bennett said on Wednesday.

Justice Susan Kiefel queried whether it was a question of "proportionality" and asked if the law went too far in seeking to obtain its object without providing adequate safeguards to protect political communication.

Section 471.12 of the Commonwealth Criminal Code states that a person is guilty of an offence if they use the postal service "in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive".

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